This district’s Court of
Appeal reversed a Maywood man’s conviction for
committing a lewd act on his 4-year-old grandniece because a police officer
intentionally referred to the man’s excluded out-of-court statement on the
witness stand in order to prejudice the jury.

Div. Eight said a
mistrial should have been declared after Maywood Police Detective Andrew
Serrata testified he could not explain why he did not test DNA swabs from the
alleged assault because defendant Neftali Navarrete’s “statement is
inadmissible.”

Los Angeles Superior
Court Judge Patrick T. Meyers attempted to cure the error by instructing
the jury to disregard the testimony. However, a colleague of the prosecutor
later indicated that Serrata, while waiting to be called to testify, complained
about Meyers’ order suppressing the statement and promised he “was going to
show” the court.

A jury convicted
Navarrete after his sister’s daughter-in-law, who lived on the same property
with him and others, said she found Navarrete in his van shirtless, lying face
down on top of her daughter with his shorts pulled to his knees and making
“sexual-type movements.”

A medical exam showed
the girl suffered no physical injury from the alleged assault, but police found
her missing sandal in Navarrete’s van.

Navarrete made a
statement to police when he was arrested, but Meyers suppressed it, finding
that independent witnesses who said detectives—including Serrata—failed to
advise Navarrete of his Miranda rights were more credible than the detectives.

After Serrata testified
when trial began the following day, Los Angeles County Deputy District Attorney
Robert C. Britton advised the trial court upon his return from lunch of what he
learned from his colleague. Britton said the conversation was prompted when the
colleague asked if Serrata had done “anything stupid on the witness stand.”

Sentenced to six years
in prison, Navarrete sought a new trial, but Meyers suggested that a jury could
distinguish a “statement” from a “confession,” and ruled that Serrata’s
misconduct did not irreparably harm Navarrete’s defense.

The Court of Appeal,
however, disagreed in an opinion by Justice Laurence D. Rubin, who noted that
evidence of Navarrete’s guilt was “not overwhelming” insofar as it relied on
the testimony of a single percipient witness and prior uncharged similar acts
more than 20 years earlier, and because Navarrete was currently in a dispute
over ownership of the property with his sister’s family.

Writing that “[a] jury’s
belief that a defendant may have confessed eviscerates the presumption of
innocence,” the justice said a curative instruction was insufficient.

He explained:

“A witness’s ambiguous
and inadvertent reference to a defendant’s out of court statement previously
excluded by the court may not always require the granting of a mistrial. Here,
Detective Serrata’s testimony was neither ambiguous nor inadvertent; it was deliberate,
triggered seemingly by his apparent pique at the court’s wondering the previous
day about the detectives’ credibility when the court granted appellant’s motion
to suppress. For that ruling, Detective Serrata admitted he was ‘going to show’
the court.

“We do not reverse
because Detective Serrata’s misconduct was willful, but his willfulness reveals
the effect he hoped his misconduct would have on the jury. He intended
to tell the jury about appellant’s statement because he intended to
prejudice the jury against appellant. On one point we agree with the detective:
His misconduct more likely than not achieved the effect he sought. But for the
price of his success, Detective Serrata cost the court, the parties, and the
public the time and expense of a retrial.”

Justices Madeleine Flier
and Tricia A. Bigelow joined Rubin in his opinion.